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Estate Plan Checkup for September: What is the Difference between a Power of Attorney and a Guardianship?

A Power of Attorney document grants to another person (the Agent) the power to act on someone else’s behalf (the Principal). Your Agent may act on your behalf as described in the Power of Attorney. Generally speaking, broader is better. If the Power of Attorney is too narrow, your Agent might not be able to act on your behalf for the purposes and at the time when you need the Agent the most and when it is most urgent for the Agent to act.

However, a Power of Attorney will not protect you from your own bad decisions and judgment. The Agent has the power to act on your behalf, but does not have the power to block you from acting. Therefore, if the Principal is suffering from an inability to exercise judgment or reduced cognition, the Principal may continue making self-destructive decisions without interference from the Agent.

This is where a guardianship comes in. A guardian acts in lieu of the Principal. A guardianship does protect the Principal from the Principal’s own lack of judgment and self-destructive decisions. The definition of an incapacitated person is “an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.”

Obtaining a guardian is a two-step process. First, a person must be found to be incapacitated. The next line of inquiry is whether there is a less restrictive alternative. It occasionally happens that a person is incapacitated, but there is a less restrictive alternative, such as a Power of Attorney, that might work for this person. Sometimes two guardians are appointed, one for the incapacitated person’s person and one for the incapacitated person’s estate. The guardian of the person takes care of the incapacitated’s personal, day-to-day needs and the guardian of the estate manages the money and other assets.

Guardianships are brought in the Orphans’ Court Division of the Courts of Common Pleas and might be opposed or unopposed. Also, counsel might be appointed for the incapacitated person to defend against the proposed guardianship.